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High Court outlaws 210 districts created by Moi and Kibaki since 1992

By | September 5th 2009

By Robert Nyasato

The frenzy of creating new districts by the Executive suffered a deadly blow yesterday, when the High Court ruled that they were done in complete disregard of the law.

A whopping 210 of the total 256 districts in the country were declared illegal, revealing the extent to which the all-powerful presidency has flouted the law.

It came a day after Parliament flexed its muscle over what most members termed as the "illegal" re-appointment of Justice Aaron Ringera as the Kenya Anti-Corruption Commission (KACC) director by President Kibaki. In protest, the MPs shot down twice attempts by the Government to send MPs on recess for six weeks, arguing Mr Ringera’s reappointment was too critical a matter to be postponed. Parliament also threatened to cut funding for KACC unless the President revokes the appointment or Ringera quits.

Yesterday, Justice Daniel Musinga said the districts created in the last 17 years were in flagrant disregard of the law, leaving only 46 districts as legally constituted.

Over the years, the Executive has used new districts as goodies to sway the electorate to vote in a manner favourable to the system. In the past six years alone, President Kibaki has created more than 180 districts and counting, while former President Moi created about 20 districts in 24 years.

In a 16-page ruling, Justice Musinga said the Districts and Provinces Act of 1992 names 46 districts only. According to the law, Coast Province has six districts, North Eastern three, Eastern eight and Central five.

Rift Valley has 14, Western four and Nyanza six.

Relevant law

"A district is an important administrative and political region to the extent that it is recognised by the Constitution and any variation of its boundaries must be done with total adherence to the relevant law," he ordered.

The judge was making a ruling on a constitutional application challenging the creation of Nyamira North District. The suit was filed by Mr Job Momanyi, Mr Titus Okoda and Mr Peter Nyamoti Nyamekendo against the Attorney-General and the Interim Independent Boundaries Review Commission (IIBRC) as first and second respondents.

Justice Musinga ordered that the boundaries of Nyamira or any other district, as spelt out in the Districts and Provinces Act, should not be interfered with.

The court also ordered the Attorney General to bear costs of the application.

Nyamira North was among several districts Kibaki created while on a tour of Kisii early this year.

A DC has already been deployed, but it remains to be seen how the Government will handle this matter.

"It is unconstitutional and a violation of the express provisions of the Act for anyone to purport to alter in any way the territorial boundaries of Nyamira District, Parliament having so meticulously defined the boundaries," Justice Musinga ruled.

Boundary review

The three had told the court that since the purported creation of Nyamira North District, tension had risen among residents over where the headquarters would be.

The judge agreed with the applicants that the Constitution gives IIBRC the mandate of making recommendations to Parliament on administrative boundaries, including fixing and reviewing boundaries of districts and other units.

"The power to create districts, review or vary boundaries is exclusively vested in Parliament and the Constitution is clear on the issue. IIBRC was duly appointed and should be left to do its work," he concluded.

The issue of electoral and administrative boundaries has been emotive and was cited by the Kriegler commission on the electoral chaos last year. It is in recognition of this that the commission recommended a boundary review team.

Parliament then formed IIBRC to review electoral, and by extension, boundaries to address the causes of election violence and ensure fair representation.

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